Hatcher v. Hatcher

173 S.E.2d 33 (1970)

7 N.C. App. 562

Genevieve HATCHER v. Bruce Y. HATCHER.

No. 7010DC110.

Court of Appeals of North Carolina.

April 1, 1970.

*35 T. Yates Dobson, Jr., Smithfield, for defendant appellant.

McDaniel & Fogel, by L. Bruce McDaniel, Raleigh, for plaintiff-appellee.

BROCK, Judge.

The only question presented by this appeal is whether the order appealed from contains sufficient findings of fact to support an award of alimony pendente lite and counsel fees.

G.S. § 50-16.8(f), which is applicable to this case, provides: "When an application is made for alimony pendente lite, the parties shall be heard orally, upon affidavit, verified pleading, or other proof, and the judge shall find the facts from the evidence so presented." (emphasis added) As pointed out by Parker J., in Blake v. Blake, 6 N.C.App. 410, 170 S.E.2d 87, the present statutory requirement for findings of fact by the trial judge in pendente lite awards of alimony is a departure from the practice as it existed prior to 1 October 1967.

If it can be said that the trial judge has sufficiently found that the plaintiff is a dependent spouse (50-16.3(a)), and that he has sufficiently found that the plaintiff does not have sufficient means whereon to subsist during the prosecution of the suit and to defray the necessary expenses thereof (50-16.3(a) (2)); nevertheless the order as entered is devoid of a finding that defendant abandoned plaintiff so as to entitle her to relief in her action for alimony without divorce and to alimony pendente lite upon this motion (50-16.3(a) (1)). Also the order is devoid of a finding that the defendant is capable of making the payments required (50-16.5(a)).

We do not interpret G.S. § 50-16.-8(f) to require the trial judge to make findings as to each allegation and evidentiary fact presented. Blake v. Blake, supra. However, it is necessary for the trial judge to make findings from which it can be determined, upon appellate review, that an award of alimony pendente lite is justified and appropriate in the case.

Plaintiff-appellee contends that Rule 52(a) (2) of the Rules of Civil Procedure (G.S.Chap. 1A), which became effective January 1, 1970, is controlling in this case and that the judge was not required to make findings of fact unless requested to do so by a party. We do not agree. The Rules of Civil Procedure are of general application and would not abrogate the requirements of a statute of more specificity. Therefore, since G.S. § 50-16.8(f) refers specifically to an application for alimony pendente lite, it would control in the case before us.

This case is remanded for rehearing on plaintiff's motion for alimony pendente lite and attorney's fees.

Error and remanded.

BRITT and GRAHAM, JJ., concur.